BYE, Circuit Judge.
Timmy A. Taylor ("Taylor") and Deborah Taylor brought this action to recover damages resulting from injuries Taylor sustained in two incidents involving a Cottrell, Inc. ("Cottrell") truck trailer. Upon Cottrell's motion in limine, the district court excluded one of Taylor's expert witnesses, finding the doctor had entered into an impermissible contingent-fee agreement which completely undermined any testimony he might offer. The district court then found Taylor lacked sufficient evidence to create a triable issue on his neck and back injury claims without an expert opinion on damages and causation, entered summary judgment on those claims in favor of Cottrell, and stayed the remaining claims. We conclude the district court erred in excluding Taylor's expert witness and reverse.
On October 1, 2007, Taylor was injured while attempting to secure a vehicle on a Cottrell car-hauling trailer. He underwent medical care for his injuries, which eventually led him to Dr. James M. Odor for a surgical consultation. After an examination, Dr. Odor advised Taylor that the best chance for improvement was through surgery. On February 21, 2008, Dr. Odor operated on Taylor to complete a two-level cervical fusion. After an unsuccessful "trial program" to return to work and some further treatment, on November 6, 2009, Taylor returned to work full-time without restrictions.
On January 12, 2010, Taylor was again injured when he fell approximately ten feet from a Cottrell trailer. He was taken to the emergency room, where he underwent x-rays and a CT scan. He was eventually discharged home with some pain medication. The same month, Taylor reported to Dr. Odor with neck and back pain. After testing, Dr. Odor observed several disc protrusions and a disc desiccation. These injuries led to another complex spinal surgery with Dr. Odor in September 2012, the cost of which exceeded $450,000.
Meanwhile, Taylor commenced this action in state court on April 3, 2009, which Cottrell timely removed to federal court based on diversity jurisdiction. After Taylor suffered the second injury and underwent more treatment, he amended his claims. While the litigation spanned over several years, the relevant events for the issues currently in dispute on appeal occurred in the span of a few months and
On August 9, 2013, two weeks before trial was scheduled to begin, Cottrell moved for a trial continuance, asserting it had recently uncovered copies of agreements between Taylor's counsel and Dr. Odor which evidenced an impermissible contingent-fee agreement. After a hearing on August 14, the district court granted the motion and permitted additional discovery. On December 27, 2013, Cottrell filed a motion to strike Dr. Odor's testimony, for sanctions related to the alleged failure to disclose the contingent-fee agreements, and to dismiss the entire case for fraud on the court. In its order granting Cottrell's motion to strike, the district court explained it was "dismayed at the events detailed in [the] Motion" and found there was a contingency agreement — not merely a lien on any proceeds from the litigation — which undermined Dr. Odor's interest in the case so much that the "best course of action [was] to exclude the testimony of Dr. Odor as an expert witness." Taylor v. Cottrell, No. 4:09-cv-00536-HEA, 2014 WL 414325, at *2 (E.D.Mo. Feb. 4, 2014). Cottrell then filed a motion to bar evidence of Taylor's damages based on the testimony of Dr. Odor or dismiss the neck and low back claims that depended on his testimony. The district court granted the motion, barring any testimony from Dr. Odor and dismissing the claims for Taylor's neck and back injuries. The district court then granted permission to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), which this Court denied on May 1, 2014. Upon Cottrell's motion, the district court then severed the claims related to the neck and back injuries, entered judgment on those claims, stayed the claims related to Taylor's shoulder injuries, and certified the judgment for immediate appeal.
We review a district court's exclusion of expert testimony for an abuse of discretion, see Brooks v. Union Pac. R. Co., 620 F.3d 896, 899 (8th Cir.2010), and its findings of fact for clear error, see Jackson v. Allstate Ins. Co., 785 F.3d 1193, 1206 (8th Cir.2015). Taylor argues the district court abused its discretion in excluding Dr. Odor as an expert witness because there was no agreement for the payment of his expert services made contingent on the outcome of the litigation, and even if there was, it did not warrant exclusion. It is difficult to determine the precise interest the district court believed existed in this case and why any bias as a result of such an interest could not be adequately addressed with the jury through cross-examination. However, the issue is immaterial because we conclude the district court erred regardless of which interest it believed existed.
The parties disagree on whether a payment for an expert witness's services made contingent on the outcome of the litigation serves to disqualify the witness. This appears to be an issue of first impression in this Court. Courts in other jurisdictions have disagreed on whether such a contingent financial interest automatically disqualifies, may serve to disqualify, or can never alone disqualify an expert witness. Compare Straughter v. Raymond, No. 08-2170 CAS (CWx), 2011 WL 1789987, at *3 (C.D.Cal. May 9, 2011) ("The Court finds that the better course of action is to exclude the testimony of expert witnesses in civil cases whose compensation is contingent on the outcome of the case."); Farmer v. Ramsay, 159 F.Supp.2d 873, 883 (D.Md.2001) (striking expert's reports because "witness contingency fee agreements
It is not clear from the district court's order whether the district court believed a contingent-fee agreement existed for Dr. Odor's expert witness services or for the payment of past medical services performed by Dr. Odor. The district court broadly referenced "a contingency fee arrangement with an expert witness," and stated "payment of the expert," which suggest it thought the contingency was for the expert witness services — not for the payment of prior medical services. Taylor, 2014 WL 414325 at *2. Additionally, the only authority the district court cited in support of exclusion was the Restatement (Third) of the Law Governing Lawyers § 117, which prohibits a lawyer from offering or paying an expert witness consideration contingent on the outcome of the litigation. Id. Thus, it appears the district court concluded Dr. Odor's compensation for testifying in this case was made contingent on the outcome of the litigation. However, the district court cited no evidence in the record to support such a finding and our independent review of the record has not revealed any. To the contrary, the undisputed record evidence shows that Dr. Odor was paid an hourly rate for his deposition testimony. Therefore, to the extent the district court barred Dr. Odor from testifying because payment for his expert witness services was made contingent on the outcome of the litigation, it clearly erred
It is also possible to read the district court's order as excluding Dr. Odor based on an agreement for the payment of the past medical expenses. In its order
The three "letters of protection" addressed to Dr. Odor, signed by Taylor's various attorneys, represented that Taylor wished to continue with the treatment advised by Dr. Odor even if it would not be covered by insurance and that he would guarantee the payment of the medical services through any proceeds from workers compensation or litigation. Essentially, these letters provided a personal guarantee for the payment of medical expenses and simply reaffirmed a lien on any future recovery by Taylor. The letters themselves fail to establish that the payment of the medical services was contingent on a favorable outcome in the litigation. Stated another way, they do not demonstrate Taylor would not be responsible for paying the medical bills should he fail to recover anything.
As to Weber's testimony, we believe the district court abused its discretion in striking her supplemental affidavit submitted after her deposition which clarified and placed into context her prior testimony. We do not permit a post-deposition affidavit to contradict prior testimony in an attempt to create issues of fact. See, e.g., Popoalii v. Corr. Med. Servs., 512 F.3d 488, 498 (8th Cir.2008) ("We have held that `[i]f testimony under oath ... can be abandoned many months later by the filing of an affidavit, probably no cases would be appropriate for summary judgment. A party should not be allowed to create issues of credibility by contradicting his own earlier testimony.'") (quoting Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.1983)). But an affidavit may be submitted to clarify ambiguities or confusion in deposition testimony. See City of St. Joseph, Mo. v. Sw. Bell Tel., 439 F.3d 468, 476 (8th Cir.2006) (explaining a district court should not strike an affidavit where it seeks to "explain portions of [the] deposition testimony that were unclear" or when the "affidavit does not actually contradict [the] earlier testimony").
During her deposition, Weber testified it was standard practice for her to seek letters of protection whenever a patient is pursuing litigation or workers compensation and that she had been doing so for ten to eleven years. When asked to explain the purpose of the letters of protection, she provided that they guarantee "if the patient wins, that attorney wins, then they will pay me from the settlement. If they don't win, there's no money." She also made some statements that if Taylor failed to recover anything through workers compensation or litigation, Dr. Odor's office would not get paid. However, at no time did she make any representation that Dr. Odor had in any way forfeited or waived his right to seek payment from Taylor. After her deposition, Weber submitted a supplemental affidavit to the district court, clarifying and putting into context her prior testimony by highlighting the difference
The only remaining interest Dr. Odor, himself, may have had is based on an increased likelihood of receiving payment through the personal guarantee and medical liens. But the practice of offering a personal guarantee for payment from litigation proceeds or placing a lien on potential litigation proceeds is not uncommon. See, e.g., Yorgan v. Durkin, 290 Wis.2d 671, 715 N.W.2d 160, 165 (2006) (explaining letters of protection are "a common practice by which lawyers representing personal injury plaintiffs ensure clients will receive necessary medical treatment, even if unable to pay until the case is concluded" (internal quotation marks omitted)); Am. Family Mut. Ins. Co. v. Ward, 774 S.W.2d 135, 137 (Mo. 1989) ("If a hospital meets certain requirements and follows certain procedures it can obtain a lien on the personal injury claims of its patients."). We do not believe that such a common interest generally presents such a bias in a witness to overcome our general rule that such issues are to be considered and evaluated by the jury, nor have we found any authority holding that such an interest alone is a basis for exclusion. Cf. DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000) (explaining that bias of an expert witness is the province of the jury and can usually be addressed through effective cross-examination); Dorsey v. Greene, 922 So.2d 121, 128 (Ala.Civ.App.2005) (holding it was legal error to disregard testimony of treating chiropractor based on financial interest of unpaid bills); Kaplan v. Hanover Ins. Co., No. 09-ADMS-10010, 2009 WL 3069004, at *2 (Mass.App.Div. Sept. 21, 2009) (explaining that total exclusion of treating chiropractor testimony was unnecessary because he could be cross-examined
In summary, the district court not only failed to articulate the precise interest Dr. Odor had in the outcome of the litigation but also failed to explain why any such interest overcomes the general rule that Dr. Odor's bias and credibility should be resolved by the jury. Therefore, on the record before us, we find an insufficient basis to exclude Dr. Odor from providing an expert opinion.
For the reasons above, we find the district court erred in excluding Dr. Odor from testifying as Taylor's expert witness. Accordingly, we also vacate the district court's order granting summary judgment and remand for further proceedings not inconsistent with this opinion.